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Fun in the Sun: What Employers Should Know About the Re-Opening of Outdoor Dining in NYS

By Katherine L. Wood, Esq.Attorney Katherine Wood

When warm weather finally hits after another long winter in Western New York, everyone wants to be outside as much as possible.  This is particularly the case after the months' long New York State Pause Order initiated by Governor Cuomo in March.  Thankfully, as of June 4, 2020, outdoor and patio dining have re-opened in WNY as part of Phase 2 of the State’s re-opening plan.  This limited re-opening, however, may have taken some by surprise, as outdoor dining was not a part of the initial Phase 2 re-opening plan, and the Governor announced its inclusion only on June 3, 2020.  Outdoor dining will be part of Phase 2 going forward for all other regions in NYS.  So, how should employers go about re-opening their outdoor dining spaces, and what should they know about the NYS Department of Labor Interim Guidance on outdoor dining? 

Physical Distancing

Employers should remember that basic physical distancing rules still apply when re-opening outdoor dining.  To accomplish this, all tables must be spaced six feet apart from other tables, patrons, and thoroughfares and corridors.  If such physical distance between tables is not feasible, the employer must place physical barriers at least five feet high between each table.  Communal tables, where multiple groups are seated at the same table, are only permissible if six feet of physical distance can be maintained between groups.  Speaking of groups of patrons, the Interim Guidance states that all members of a group must be part of the same party, but the members of the group may all be from different households. 

These physical distancing rules also apply to outdoor bar seating areas—customers may sit at outdoor bar areas, so long as six feet of physical distance is maintained between groups of customers. 

Face Coverings

Face covering rules also apply.  All staff must wear face coverings and maintain six feet of physical distance.  Customers must also wear face coverings when they are not seated at their outdoor dining table, provided that the customer is over the age of two and can medically tolerate wearing such a covering.  Employers must also hang the Department of Labor’s COVID-19 signage in view of employees and customers to remind them of requirements such as face coverings, physical distancing, and hygiene.

To accommodate these physical distancing rules, establishments may need to limit their outdoor dining capacity.  The Interim Guidance states that no more than 10 customers may be seated at a single table—the aim of this rule is likely to encourage and accommodate social distancing.  It is also suggested that employers use arrows, constructed with either tape or signage, in common areas such as hallways to reduce bi-directional foot traffic and promote physical distancing.  Contactless payment is also suggested as a method of promoting physical distancing, but if contactless payment is not available, employers should minimize the use of billfolds and present only paper receipts to customers.

For some practical guidance on how to approach customers without facemasks, please take a look at this helpful article, written by my Hurwitz & Fine colleague Ann E. Evanko

Indoor Necessities

Of course, customers may have to go inside the establishment at some point, whether for restroom use or as a way to enter or exit the outdoor dining space.  In these circumstances, six feet physical distance must also be maintained, and proper face coverings must be worn by customers.  However, employers must ensure that other indoor dining and seating areas, such as indoor dining tables, remain off-limits to customers.  The Interim Guidance also encourages employers to utilize signage and systems for restroom use, such as a door sign indicating occupancy, to encourage physical distancing.

As for indoor spaces used by staff, employers should limit indoor, in-person meetings such as staff meetings, as much as possible.  Employers should also consider closing non-essential in person amenities, such as staff coffee machines or vending machines. 

Moving Forward and Other Considerations

The Interim Guidance touches on a variety of other issues specific to restaurants, such as kitchen area use and vendor pickups and deliveries.  It also discusses topics that all re-opening businesses must abide by, such as hygiene, cleaning, and disinfection; protective equipment; screening and testing of employees; tracking and tracing; and employer re-opening plans.  Employers who are re-opening their outdoor dining spaces should also ensure compliance with all re-opening guidelines that may be non-specific to outdoor dining.

Among the non-specific rules for employers is the requirement that all business have a safety plan.  A template plan is available here.  An employer’s safety plan should be carefully developed to ensure it contains appropriate safety rules and procedures.  Employers should also consider revising or adding employment policies to their employee handbooks concerning workplace safety.

Although WNY is not in Phase 3 of re-opening yet, the State has issued guidance for when we arrive at that stage.  Employers should begin reviewing this guidance to ensure they are prepared for Phase 3.

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